Thursday, December 13, 2012

Not only ‘gross negligence’, but ‘due diligence’ is equally relevant and important criterion in measuring and determining “professional misconduct” in case of a Chartered Accountant.

In the instant case, the petitioner, a practicing CA, was aggrieved by two concurrent orders passed by disciplinary and appellate committee whereby punishment of removal of petitioner's name from the register for a period of 1 year was imposed and confirmed. The above order was passed on the basis of following reasoning:

a) The petitioner did not exercise due diligence;

b) He had shown gross negligence and carelessness in certifying tax audit report which did not reflect true and fair picture of the company’s affairs; and

c) He had signed the tax audit report without actually performing the audit as required.

The High Court dismissed the petition by holding as under:

1) The petitioner was conveniently overlooking the fact that as a professional CA while certifying audit report, it was his duty to diligently prepare the report without any mistake. It was his obligation to be diligent, careful and cautious before issuing certificate;

2) “Gross negligence” alone is not required to be taken into account while examining the act of the petitioner. But the exercise of due diligence is equally vital to decide whether acts of omission and/or commission amount to misconduct;

3) Once a particular factual aspect or entries, etc., are prepared, signed and certified by CA they are ordinarily accepted without further probing or investigation. In such circumstances, the duty and obligation of being absolutely diligent, conscious and careful are multiplied manifold and a CA shouldn’t perform his duties lightly or casually;

4) A mistake by a petty clerk or lower level accountant may be dealt with in a different manner but a mistake by a CA cannot be treated casualty;

5) The professional or trained CA is equipped with knowledge, training and experience to catch a mistake and if such trained and experienced professional allows so many mistakes, pass-by without detecting them and if he signs and authenticates report containing such mistakes, etc., and also issues certificate, then, in such circumstances, any fault cannot be found with the conclusions drawn by the Disciplinary Committee, also confirmed by the Appellate Committee;

6) The petitioner had tried to wish-away his failure in detecting, catching and correcting the mistakes by attributing the blame to typist and computer operator. Therefore, the Court was not inclined to accept the petitioner's contention that the action taken by the institute was too harsh - CA Rajesh v. Disciplinary Committee [2012] 28 taxmann.com 100 (Gujarat)

In the instant case the moot question which arose before the Supreme Court was as under:

“Whether the expression ‘lender’ used in para 2.1 of RBI’s Master Circular dated 01.07.2008 on willful defaults should be restricted to a bank which had lent funds by way of loans and advances or it could be extended to cover a bank to which customer owes money under a derivative transaction”

Deliberating on the above issue the Supreme Court held as under:

1) The purpose of RBI’s Master Circular on willful defaults was “to put in place a system to disseminate credit information pertaining to willful defaulters for cautioning banks and financial institutions so as to ensure that further bank finance is not made available to them”;

2) This Master Circular was issued pursuant to Central vigilance commission’s instructions, which covered “all cases of willful default of Rs. 25 lakhs and above” and were not confined to only willful default by a borrower of his dues to the bank in a lender-borrower relationship;

3) The mischief that was sought to be remedied was that banks should not be exploited by parties who have the capacity to pay their dues to the banks but who willfully avoid paying their dues to the banks;

4) It is crystal clear from a bare reading of para 2.6 of the Master Circular that non-funded facilities such as a guarantee is covered by the Master Circular and when a guarantee is invoked by a bank/financial institution but is not honoured, the defaulting constituent of the bank is treated as a willful defaulter even though it may not have borrowed funds from the bank in the form of advances or loans.

On basis of above, it was held that ‘willful defaults' of parties under a derivative transaction with a bank are covered by the Master Circular - Kotak Mahindra Bank Ltd. v. Hindustan National Glass & Ind. Ltd. [2012] 28 taxmann.com 140 (SC)